A recent crackdown on surrogacy in the Mexican state of Tobasco has forced foreign intended parents to sue the government to receive birth certificates for their children born via surrogacy and reaped havoc in the lives of families caught unawares by a recent change in the law.

The New York Times wrote recently about Michael Theologos, a gay intended parent from New York City whose son, Alexandros, was taken from him by Mexican authorities one day after birth and held for six weeks before being returned to his father. After hiring attorneys, to no avail, Theologos got help from non-profit advocacy group Information Group on Reproductive Choice, or GIRE, which filed a writ of habeas corpus on his behalf, according to the New York Times report.

For many years Tabasco was the only state in Mexico that allowed foreign intended parents to engage in surrogacy. The region, which has among the highest unemployment rates in Mexico, saw increased traffic as foreign surrogacy hubs in India and Thailand were shut down. But in January 2016, legislators passed a law restricting surrogacy to Mexican heterosexual intended parents, catching many foreign intended parents, already contracted with agencies to engage surrogates, unawares. Nine months after passage of the law, the Tobasco registry office began refusing to issue birth certificates to children born via surrogacy to foreign parents, preventing them from obtaining passports to return home with their infants, and forcing parents to sue the government, with mixed results. Some families have been trapped for months in Tobasco, waiting for documentation to take their infants home; others already underway in the surrogacy process are fearful the same will happen to them.

Mexican authorities cite potential for sexual abuse, child trafficking, even organ harvesting, to justify the crackdown on surrogacy, The New York Times reports. But some experts believe the claims are merely cover for official discomfort over allowing same-sex couples to become parents via surrogacy.

Although the Times headline describes the Tabasco surrogacy ban as an added “strain” on the global surrogacy system, the reality is more complicated. It is true there are fewer places in the world today where intended parents can seek lower-cost surrogacy than there were a few years ago. In many parts of the world, there have been few or no laws governing assisted reproduction, and many governments find themselves wrestling with perceived ethical or moral questions in the face of technological advances and growing demand for surrogates. In many cases, the official response is to restrict or ban the practice altogether.

But while increasingly restrictive laws have reduced the number of options for intended parents seeking surrogates, hiring surrogates in countries where little regulation exists, or where the law is still being hammered out, has always been a high-risk proposition. The scarcity of safe, legally regulated locales to engage in surrogacy is nothing new. There are fewer places where intended parents can engage in surrogacy, but the places where they can safely engage in surrogacy have always been the safest places.

As we wrote in 2014, when Thailand’s government shut down the country’s surrogacy industry, hiring surrogates from less wealthy countries to cut costs has always been a high-risk proposition:

There's obviously a high cost to doing surrogacy in the U.S., which is why a lot of people look to India and Mexico and Thailand for the promise of cheaper alternatives. Unfortunately, the bargain deal too often comes with the added cost of a risky venture: statistically lower medical success rates, questionable medical and business practices, and an extremely unsafe legal landscape. Compare those high costs with that of surrogacy in the U.S., where success rates are high, quality control measures are in place, and there is a stable legal environment that will protect the intended parents' rights, and the steep investment starts to look more reasonable. As the evidence continues to affirm, go to a low-cost country for assisted reproductive technology procedures and you might find yourself having to do it all over again in the U.S.—and paying more in the long run because of it.

IVF, surrogacy and related services are expensive in Western countries, although rapidly improving technology, which has boosted success rates, and the growing numbers of intended parents seeking the option may theoretically be pushing costs down. Adding to the challenges for intended parents are the restrictions many developed countries continue to impose on reproductive freedom. Jurisdictions where the law prohibits certain groups, such as single intended parents or same-sex couples, from creating families via surrogacy feed the movement to seek places where no or few laws are in place. The desire for parenthood isn’t going away. The only way to ensure surrogacy occurs under safe, healthful and legally secure conditions is to establish laws that ensure reproductive freedom for all individuals.

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Richard Vaughn

rich@iflg.net

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

ABOUT IFLG

As a law firm practicing exclusively in fertility law, we are committed to providing you and your family with the highest caliber legal support in all aspects of assisted reproductive technology law, including surrogacy, egg donation, embryo donation, sperm donation, parental rights, non-traditional family formation and second-parent adoption.

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.